Stacy v. Farnham

Decided December 15, 1845

New York Supreme Court · decided 1845-12-15

Motion by defendant to set aside writ of replevin and proceedings for irregularity. This motion was made on two grounds; 1st, because the writ should have been directed to and executed by the coroner ; and 2d, on the ground that the affidavit annexed to the writ should not have been entitled. It appeared in this case that the writ of replevin was directed to the sheriff of ®Erie county, and served by one of his deputies on the defendant, who was under sheriff of Erie.

Decided 1845-12-15

Jewett, Justice.

¶1This suit is neither brought by or against the sheriff of Brie, (2 R. S. 533, *§ 67,) therefore the writ of replevin was properly ^directed to and executed by him. The affidavit of ownership of property, &c., annexed to the writ should not have been entitled; for the reason it is informal and defective, but it maybe amended. (Cutler agt. Bathbone, sheriff, 1 Hill, 204, and cases there cited.) The plaintiff may, therefore, amend the defect in the affidavit by making and filing a new affidavit annexed to the writ without costs. {Rule 61.)

¶2Buie accordingly.